Evidence Rape

He’s a tricky one, that fast-talking Sam Alito. Adding two plus two and almost making it seem as if .22% BAC was the right answer.

The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates. So BAC tests are crucial links in a chain on which vital interests hang.

See what he did there? Told you he was tricky. Saving lives is, undeniably, important, but obtaining a blood alcohol concentration level isn’t about saving lives. It’s about collecting evidence for prosecution. A drunk driver is a danger to others while driving, while on the road. Once seized and arrested for drunk driving, the potential harm is abated. After that, the question is what to do about with the drunk driver.

First, highway safety is a vital public interest. For decades, we have strained our vocal chords to give adequate expression to the stakes. We have called highway safety a “compelling interest,” Mackey, 443 U. S., at 19; we have called it “paramount,” id., at 17. Twice we have referred to the effects of irresponsible driving as “slaughter” comparable to the ravages of war.

Laying it on thick, Sam. We got it the first time you said it, and if it’s as vital as you say, there would be no need to gild the lily, and then gild it again for good measure. And the case doesn’t challenge the notion that drunk driving is so innocuous that it needn’t be a crime, so why harp on the obvious?

Second, when it comes to fighting these harms and promoting highway safety, federal and state lawmakers have long been convinced that specified BAC limits make a big difference. States resorted to these limits when earlier laws that included no “statistical definition of intoxication” proved ineffectual or hard to enforce.

A big difference? Ineffectual or hard to enforce? That’s not remotely true, Sam, and you know it. You were there before MADD’s effective push on lawmakers to adopt an easier method of proof, a brighter if somewhat dishonest one-size-fits-all line, to facilitate conviction and create a means of proof that no argument could dispute.

It’s not that people weren’t convicted of drunk driving before blowing or blood became the go-to evidence. They were. All the time. There were the usual observations, bloodshot eyes, slurred speech, unstable gait. And there were the observations about driving that led an officer to pull the driver over. That was the harm. That was the cause, that a person driving a car was doing so dangerously. And when the officer’s testimony was credible, accurate and sufficient, drivers got convicted.

But BAC was the backdoor trick, a method of creating a fictional number that may, but may not, demonstrate an inability to drive safely. But if a cop obtained evidence of a BAC over the limit that MADD demanded (“for the children”), it was science. There was no fighting it, no denying it. There was no way to argue one’s way out of a BAC of .22. So let’s be honest, Sam. This isn’t about making the roads safer, but convicting people after the threat of harm has been eliminated.

Third, enforcing BAC limits obviously requires a test that is accurate enough to stand up in court, id., at ___– ___ (slip op., at 3–5); see also McNeely, 569 U. S., at 159–160 (plurality opinion). And we have recognized that “[e]xtraction of blood samples for testing is a highly effective means of ” measuring “the influence of alcohol.”

It doesn’t “require” a test, Sam. It’s just that the test makes for better evidence than a cop’s testimony. There’s a possibility that the cop’s testimony will be contradicted and found incredible, maybe because it’s a lie or maybe because the cop just sucks at his job, but it can happen. But introduce that BAC report and it doesn’t matter how good Barney Fife does on the stand, as nobody can cross that piece of paper until it cries. Was that what you meant by require?

Finally, when a breath test is unavailable to promote those interests, “a blood draw becomes necessary.” McNeely, 569 U. S., at 170 (opinion of ROBERTS, C. J.). Thus, in the case of unconscious drivers, who cannot blow into a breathalyzer, blood tests are essential for achieving the compelling interests described above

It’s beginning to seem like you’re just repeating a disingenuous argument. We already know it’s not “necessary,” because there remains all the evidence that was used in all those cases long before MADD made BAC seem sufficiently justifiable that its irrationality and failings are shrugged off by words like “necessary.”

But none of this fancy footwork has anything to do with the one issue before the Court, Sam, and yet it’s what you keep harping on. Get to it, Sam. Let it out. Say it.

We held that there was no time to secure a warrant before a blood test of a drunk-driving suspect in Schmerber because the officer there could “reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under
the circumstances, threatened the destruction of evidence.” 384 U. S., at 770 (internal quotation marks omitted). So even if the constant dissipation of BAC evidence alone does not create an exigency, see McNeely, supra, at 150–151, Schmerber shows that it does so when combined with other pressing needs.

And what “needs” are so pressing that they overcome the Fourth Amendment’s warrant requirement, overcome McNeely, overcome the revulsion of a government agent, particularly one so trusted in judgment as a cop, to take a pointed object, on his own, and jam it into a person’s body?

Thus, exigency exists when (1) BAC evidence is dissipating and (2) some other factor creates pressing health, safety, or law enforcement needs that would take priority over a warrant application. Both conditions are met when a drunk-driving suspect is unconscious, so Schmerber controls: With such suspects, too, a warrantless blood draw is lawful.

Was there time and opportunity to obtain a search warrant and thus honor the Fourth Amendment? There was, which is why you left that part out of your analysis, Sam. But if the guy’s unconscious, that, and that alone, means the cops can have their way with him, even though it has no rational bearing whatsoever on safety or the ability to comply with the warrant requirement.

That desperate desire for evidence to make conviction fast, easy and above challenge means you latch onto the most ridiculously irrelevant factor possible as if you can pull off the trick of conflating highway safety with not letting the Fourth Amendment get in the way of inserting a needle into an unconscious guy, even when the warrant was there for the asking.

An unconscious guy can’t consent. He also can’t refuse. Cool trick, Sam.

10 thoughts on “Evidence Rape

  1. B. McLeod

    The magic number cuts both ways. Once the statutory law has been changed so that driving with the stated BAC is the offense, Officer Fife can no longer make the case without valid blood or breath results on proper foundation. If there is a provable foundation problem with the maintenance or operation of the testing equipment or chain of custody of the sample, that is a mountain the state cannot climb. This (and problems with the initial stop) is how good defenders can still sometimes carry the day in these cases, despite the most rabid protests of MADD.

    1. SHG Post author

      Whispers: sometimes, the equipment isn’t calibrated but they say it is, because you can’t prove otherwise.

      1. B. McLeod

        Sometimes. Sometimes there will be a missing document entry where an entry should be. Another element of randomness in a randomness machine.

  2. DaveL

    So… the exigent circumstance in this case is the urgent need to prevent an unconscious person from driving?

  3. CHenry

    Impaired or not? Field sobriety testing, now possible with video documentation from body cameras, provides evidence of function, or impairment thereof, preferably with a citation for a moving violation. (The prosecutions of those presumably impaired but not having been driving for having “access” to a vehicle are problematic. Someone sleeping off their drinking in their car isn’t a threat and isn’t driving, but they do have access.)

    BAC. We’re led to believe that there is a magic number, above which is supposed to mean impairment and below which is not. Were it just that simple.

    There is only presumption that BAC is “dissipating.” Sure, that happens when the suspect has stopped drinking, no longer has unabsorbed alcohol in their stomach, and has a normal circulatory system and a normal liver. I suppose these conditions are also presumed, if urgency is to be presumed.

    Who did this blood draw? On what professional’s order?

Comments are closed.